United States v. Sergeant JESSE J. BRAY ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JESSE J. BRAY
United States Army, Appellant
ARMY 20100029
Headquarters, U.S. Army Armor Center and Fort Knox
Timothy Grammel, Military Judge
Colonel Robert J. Cotell, Staff Judge Advocate
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain Richard M. Gallagher, JA (on
brief).
For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Stephen E. Latino, JA (on brief).
30 July 2012
------------------------------------------------------
SUMMARY DISPOSITION ON REMAND
------------------------------------------------------
KRAUSS, Judge:
A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of assault consummated by a battery as a
lesser-included offense of rape, three separate and additional assaults consummated
by a battery, an assault consummated by a battery on a child, child endangerment,
and obstructing justice, in violation of Articles 128 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 928, 934 (2006) [hereinafter UCMJ]. * The panel
sentenced appellant to a bad-conduct discharge, confinement for six months,
*
The panel acquitted appellant of one specification of aggravated sexual contact,
two specifications of assault consummated by a battery, one specification of reckless
endangerment, and one specification of kidnapping. In addition, separate
specifications of assault consummated by a battery and obstructing justice were
dismissed.
BRAY—ARMY 20100029
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.
On 10 November 2011, we issued a decision in this case, affirming the
findings of guilty and the sentence. On 10 July 2012, our superior court reversed
our decision as to Charge III, Specifications 2 and 5 (child endangerment and
obstructing justice in violation of Article 134, UCMJ), and as to the sentence, and
returned the record of trial to The Judge Advocate General of the Army for remand
to this court for further consideration in light of United States v. Humphries, 71 M.J.
209 (C.A.A.F. 2012). Consequently, appellant’s case is again before this court for
review under Article 66, UCMJ.
In light of Humphries, we are compelled to disapprove the findings of guilt as
to the two Article 134, UCMJ, offenses previously affirmed. Neither specification
contained allegations of terminal elements under Article 134, UCMJ, nor is there
anything in the record to satisfactorily establish notice of the need to defend against
a terminal element as required under Humphries. Therefore, we now reverse
appellant’s convictions for child endangerment and obstructing justice and dismiss
the defective specifications which failed to state an offense in light of United States
v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). Such dismissal is without prejudice. See
United States v. Saintaude, 56 M.J. 888, 891 (Army Ct. Crim. App. 2002), aff’d, 61
M.J. 175 (2005).
In light of the above, we also reverse the sentence in this case. A panel of
officer and enlisted members sentenced appellant to a bad-conduct discharge,
confinement for six months, forfeiture of all pay and allowances, and reduction to
the grade of E-1 when he faced a maximum punishment of a dishonorable discharge,
ten years’ confinement, forfeiture of all pay and allowances, and reduction to the
grade of E-1. Absent the convictions here reversed, appellant would have faced a
maximum time in confinement of four years. Such a significant change in the
sentencing landscape in a case adjudged by a panel, where the trial counsel
emphasized the offenses now reversed as the basis for imposition of a severe
punishment, precludes a confident reassessment of the sentence. Therefore, we will
direct a rehearing on sentence for the offenses remaining.
Therefore, on consideration of the entire record, and in light of United States
v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), the findings of guilty of Specifications
2 and 5 of Charge III, and Charge III, are set aside and those specifications are
dismissed without prejudice. The remaining findings of guilty are affirmed. The
sentence is set aside. A rehearing on the sentence may be ordered by the same or a
different convening authority.
2
BRAY—ARMY 20100029
Senior Judge JOHNSON and Judge BURTON concur.
FOR THE COURT:
FOR THE COURT:
JOANNE P. TETREAULT ELDRIDGE
Deputy
JOANNEClerk of
P.Court
TETREAULT ELD
3